The death of a child from herpes, allegedly contracted from a mohel performing direct oral suction during circumcision, has left a permanent scar on the Jewish community. In recent weeks, the fallout from the tragedy, and the rift it has generated within the Orthodox community, has only worsened. As New York City health officials investigate the case, debate within the Jewish community surrounding the issue of metzitzah be peh, direct oral suction, has erupted. Rabbi Dr. Moshe Tendler, of Yeshiva University, is at the forefront of the controversy and has been vilified by the Chasidic community for his position on the issue.

The Mishnah in Masechet Shabbat (133a) records the practice of metzitzah as a secondary aspect of the circumcision process, and states that metzitzah must be performed at the end of the circumcision. The Gemara explains (ibid 133b) that refraining from performing metzitzah endangers the baby. The commentators elaborate that metzitzah is performed in order to hasten the healing of the wound. The implication of the Gemara is that metzitzah functions as a medical procedure and not a religious one.

In August of 2004, a team of twelve researchers published a study in the medical journal Pediatrics. The study documented a correlation between circumcised Jewish babies infected with herpes and the custom of metzitzah be peh. The study claims that mohelim infected with herpes represent a potential source of the disease to the infants through physical contact between the wound and the lips of the mohel.

The nature of the herpes contracted by these babies was not the more common genital herpes virus type 2, but herpes simplex virus type 1. When left untreated, 95 percent of survivors suffer from severe neurological effects. 30 percent of victims develop neurological impairments, which often manifest before two or three years of age. However, death from herpes type 1 is uncommon.

Based on their findings, the researchers concluded that the custom of metzitzah be peh should be modified to adhere to modern standards of hygiene, thus altering the custom from its ancient form. To support their recommendation from a religious perspective, the study cites the decision of rabbinic authorities in the late 18th century who ruled that metzitzah can be performed using instrumental suction. Using an instrument, in lieu of direct physical contact between the mohel and the baby, would eliminate any chance of infection of the baby by the mohel and still fulfill the halachic requirements of metzitzah.

In the last few months, the concern regarding direct oral suction climaxed with the infection of twin boys in October of 2004. Both boys were circumcised on October 16, and both of them contracted the disease. Soon after being infected, one of the twins died from the disease. On November 3, 2004, another case of herpes was discovered. The same mohel who performed the circumcision on the twin boys in October performed the circumcision in this case. In reaction to these cases the New York City Health Department issued an order against the mohel, Rabbi Yitzhok Fischer of Rockland County, demanding that he cease oral suction, use sterile gloves, and present himself for a blood sample. On December 22, the health department filed against Rabbi Fischer in court because he failed to comply with the order.

In a phone interview with The Commentator, Gabriel Taussig, Chief of Administrative Law Division at the New York City Department of Law, stressed that the investigation into Rabbi Fischer is ongoing and no conclusions have been made. However, the city's lawyers have presented a lawsuit on behalf of the Department of Health, demanding Fischer's cooperation with the investigation and obedience with the order issued to modify his practices. The degree of Fisher's cooperation is not clear. Taussig would not speculate regarding any steps the city might take in the future to regulate the matter.

The story of the incident was picked up by a local newspaper and quickly spread. On February 2, 2005 the story was carried by most major news sources. The New York Daily News contacted Rabbi Dr. Moshe Tendler, professor of Biology and Jewish Studies at Yeshiva, to comment on the situation. Rabbi Tendler, a contributor to the study published in Pediatrics, remarked that direct oral suction is not required and posses a risk to the baby.

Rabbi Tendler's comments were pounced upon by the right wing newspaper, Yated Neaman. The newspaper attacked him for being an 'informer' (mesir) on the Jewish community. The paper claimed that Rabbi Tendler reported Rabbi Fischer to the health department and blamed him for governmental interference with ritual circumcision. The situation erupted and pamphlets were published claiming that Rabbi Tendler wants to abolish ritual circumcision in America, resulting in the vandalism of Rabbi Tendler's synagogue in Monsey, New York.

In an exclusive interview with The Commentator, Rabbi Tendler explained his involvement with the controversy. He claimed that he never contacted the New York City Health Department, and had no knowledge of the death of the baby on October 26 from Herpes. He further explained that he did not speak to the officials at the hospital where the baby died; rather, the hospital reported the death to the Health Department.

Rabbi Tendler expressed grave concern regarding the involvement of the Health Department with religious practices. He pointed out that the constitutional separation between Church and State has allowed Orthodox Judaism to thrive in America. Rabbi Tendler also posited that the only way to solve the problem is to create a system of self regulation, a system where the Jewish community regulates mohelim. Rabbi Tendler recounted that there used to be a Milah Board, of which he was a member. The board regulated and licensed mohelim in order to maintain a basic standard of expertise and knowledge. However, the board disintegrated upon the retirement of its head and has never been revived. Rabbi Tendler stressed the necessity of such a body, stating that such an organization's existence is imperative in maintaining religious autonomy. Rabbi Tendler called on community organizations, such as the Orthodox Union (OU) and Rabbinical Council of America (RCA), to respond to the situation. He explained that these organizations should set up a licensing agency to instruct and train mohelim.

On March 2, the RCA released a statement approving and recommending the use of an instrument when performing metzitzah. However, the statement is simply a recommendation, not a demand for revised procedures.

Regarding the attacks in Yated, Rabbi Tendler expressed surprise and disappointment. He suggested that the article attempted to shift interest from Fischer to himself by labeling him an halachic 'informer' to the Health Department. Rabbi Tendler ironically noted, "if I had had all the information that Fischer had been involved in three cases of herpes and continued to perform direct oral suction, I would have been halachically required to report him to the authorities. But I did not have to do that, the hospital did". Rabbi Tendler went even further, remarking "classifying this as a matter of mesirah (informing) reflects a primitive understanding of halacha."

In response to rumors that he had been uninvited from the Agudath Israel sponsored Siyum HaShas on March 1, Rabbi Tendler explained that he decided not to go independently, because he realized the kind of social primitiveness of the people involved in the matter, which could have resulted in some form of disturbance or distraction from the ceremony.

Even though Rabbi Tendler's position of performing oral suction using a sterile instrument instead of direct oral contact has firm halachic support, Rabbi Yosef Shalom Elyashiv has publicly stated that, unlike AIDS, herpes does not pose a real threat to the baby and therefore the custom of direct oral suction is permitted. Rabbi Tendler pointed out that although Rabbi Elyashiv permits using an instrument to perform oral suction when there is a concern that the mohel might contract AIDS from the baby, which has never occurred, Rabbi Elyashiv does not allow an instrument to be used to protect the baby from herpes, a substantive and documented concern.

It seems obvious that the Yated's articles written by the editor, Pinchas Lipschutz, are biased and seem to be overtly attacking Rabbi Moshe Tendler, as if fueled by some by personal animosity rather than Kovod Shem Shamayim. This bothered me because the articles seem to be so slanted and one sided, and the transcript of the tape this past week that was published seems to be transcribed so incriminatingly (NOTE: As one who HAS heard the tape, it is very unclear, but it is obvious to anyone who actually hears it that the Yated took it out of context, and did not transcribe any emphasis or inflection that was on the tape, and the transcription greatly varies from the text that the Yated printed as fact) I recently spoke to an older rabbi who was involved in kashrus for many years and now I think that these attacks ARE personally motivated. It is well known that Pinchas Lipschutz's father started the NK Kashrus organization. What may not be well known is that he was the head of the OU's Kashrus organization before that. Sadly, the RCA's Kashrus Committee at the time discovered some horrible things that were going on in the OU, which involved major halachic problems with the administration of kashrus by Rabbi Lipschutz Sr. and the result was that Rabbi Lipschutz Sr. was thrown out of a job. He THEN founded the NK. This is all public knowledge, which people have known about for years. What I discovered that was astounding was that of all the rabbis on the RCA Committee that leveled the charges against Rabbi Lipschutz Sr., there were 2 or 3 rabbinic figures who were key and instrumental in the investigation. Rabbi Moshe Tendler was one of those key rabbis, who exposed Rabbi Lipschutz Sr. So now the son is out to avenge the father. Seems like this is something that readers of Pinchas Lipschutz should know before they take what he writes in his newspaper as fact.